BOARD DATE:	  4 May 2011

		DOCKET NUMBER:  AR20100026882 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests upgrade of his general discharge to an honorable discharge.

2.  The applicant states he was informed that his discharge would be upgraded but he was unaware of how to request an upgrade.

3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and an Oklahoma Public Employees Retirement System letter.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.


2.  The applicant enlisted in the Regular Army on 3 September 1969.  He completed initial entry training and he was awarded military occupational specialty 63B (wheel vehicle repairman).

3.  He accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), on five occasions between 11 June 1970 and 1 March 1971 for:

* wrongfully having in his possession 1 ounce, more or less, of hash
* on four separate occasions, without authority, failing to go at the time prescribed to his appointed place of duty
* disobeying a lawful command from a commissioned officer
* disobeying a lawful order from a noncommissioned officer
* violating a lawful written order

4.  His military record contains an Army Europe (AE) Form 3087 (Report of Psychiatric Examination), signed by a psychiatrist, dated 25 February 1971.  The report shows he was diagnosed as having a passive-aggressive personality, which was not incurred in the line of duty and not due to own misconduct.

5.  The report indicated the applicant enlisted in the Army to get away from home after his family moved from the city to the country.  The report further indicated the applicant admitted to using drugs since coming into the service and claimed to use hashish daily.  It further stated that his adjustment to the service had been poor, having received NJP for such things as missing formation, refusing to work, and being absent from his place of duty.

6.  The psychiatric examination report further stated the applicant was found to have a character and behavior disorder of long standing which was not expected to respond to methods of rehabilitation such as psychiatric treatment, further transfers, or punitive measures.

7.  On 4 May 1971, the applicant's commander advised him of the proposed action to discharge him under the provisions of Army Regulation 635-212 (Personnel Separations-Discharge-Unfitness and Unsuitability) because of unsuitability.  He was advised of his rights to present his case before a board of officers, to submit statements in his own behalf, to be represented by counsel, and to waive his rights in writing.

8.  On the same date, he was advised by consulting counsel of the basis for the contemplated separation for unsuitability.  He acknowledged he understood he 


may expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions was issued.  Having been advised by counsel the applicant waived all his rights and elected not to submit a statement in his own behalf.

9.  On 11 May 1971, the separation authority approved the applicant's discharge from the service for unsuitability under the provisions of Army Regulation
635-212 and directed the issuance of a General Discharge Certificate.

10.  On 14 June 1971, the applicant was discharged accordingly.  His DD Form 214 (Armed Forces of the United States Report of Transferor Discharge) shows he was discharged under provisions of Army Regulation 635-212 with a separation program number (SPN) of 264 for unsuitability, character and behavioral disorders, with issuance of a General Discharge Certificate.  He completed 1 year, 9 months, and 12 days of total active service.

11.  There is no indication the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.

12.  Army Regulation 635-212, then in effect, set forth the policy and procedures for administrative separation of enlisted personnel for unfitness and unsuitability.  Paragraph 6b provided that an individual was subject to separation for unsuitability when one or more of the following conditions existed:  (1) inaptitude; (2) character and behavior disorders; (3) apathy (lack of appropriate interest, defective attitudes, and inability to expend effort constructively); (4) alcoholism; (5) enuresis; and (6) homosexuality (Class III - evidenced homosexual tendencies, desires, or interest, but was without overt homosexual acts).  When separation for unsuitability was warranted, an honorable or general discharge was issued as determined by the separation authority based upon the individual's entire record.

13.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) was revised on 1 December 1976, following settlement of a civil suit.  Thereafter, the type of discharge and the character of service were to be determined solely by the individual's military record during the current enlistment.  Further, any separation for unsuitability based on personality disorder must include a diagnosis of a personality disorder made by a physician trained in psychiatry.  In connection with these changes, a Department of the Army Memorandum dated 14 January 1977, and better known as the Brotzman Memorandum, was promulgated.  It required retroactive application of revised policies, attitudes, and changes in reviewing applications for upgrade of discharges based on personality disorders. 


14.  A second memorandum, dated 8 February 1978, and better known as the Nelson Memorandum, expanded the review policy and specified that the presence of a personality disorder diagnosis would justify upgrade of a discharge to fully honorable except in cases where there are "clear and demonstrable reasons" why a fully honorable discharge should not be given.  Conviction by general court-martial or by more than one special court-martial was determined to be "clear and demonstrable reasons" which would justify a less than fully honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant received NJP on five occasions for incidents including wrongfully having hashish in his possession, for failing on four separate occasions to go at the time prescribed to his appointed place of duty, for disobeying a lawful command from a commissioned officer, for disobeying a lawful order from a noncommissioned officer, and for violating a lawful written order.  He was advised of the effects of a general discharge.  He was also afforded the opportunity to consult with counsel and to submit a statement in his own behalf.

2.  A separation for unsuitability with SPN 264 must include a diagnosis of a personality disorder made by a physician trained in psychiatry.  While all requirements of law and regulations, then in effect, were met and the rights of the applicant were fully protected throughout the separation process, the Brotzman Memorandum required that the revised provisions of Army Regulation 635-200 be applied retroactively when reviewing applications for upgrade of discharges based on personality disorders.  Therefore, the applicant's application was reviewed using the revised criteria of Army Regulation 635-200.

3.  The Nelson Memorandum specified that the presence of a personality disorder diagnosis would justify upgrade of a discharge to fully honorable except in cases where there are "clear and demonstrable reasons" why a fully honorable discharge should not be given.  While the applicant's military personnel record indicates his behavior and performance did not meet those expected of military personnel, his record does not meet the "clear and demonstrable reasons" why a fully honorable discharge should not be given.  Therefore, it would be appropriate to upgrade the applicant's general, under honorable conditions discharge to an honorable discharge based on his personality disorder and the absence of substantial instances of indiscipline.

4.  In view of the foregoing, the applicant is entitled to have his records corrected as shown below.


BOARD VOTE:

___x____  ____x___  ___x____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: 

   a.  issuing him an Honorable Discharge Certificate (DD Form 256A), dated
14 June 1971, in lieu of the General Discharge Certificate of the same date now held by him; and

   b.  issuing him a new DD Form 214 reflecting the above corrections.



      ___________x____________
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20100026882



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ABCMR Record of Proceedings (cont)                                         AR20100026882



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